Equaity of opportunity in matter of public employment

EQUALITY OF OPPORTUNITY IN MATTER OF PUBLIC EMPLOYMENT

Author: Ms. Jyoti Jha, JEMTEC, School of Law

1. INTRODUCTION

The Constitution of India provides various fundamental rights in part III under which article 16 provides equality of opportunity in matters of public employment. Article 16 is provided to all citizens of the country. Article 16 covers the following aspects:-

• There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
• No discrimination on basis of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of office/employment under the state. 
• Parliament can make laws in regard to class/classes of employment or appointment of office prior to such employment or appointment.
• State can make provision for reservation of appointment or post in favour of any backward class.
• State can also do a reservation for promotion and consequential seniority of SC, STs.
• State can make the separate classes of vacancies from the unfilled vacancies of year for determining the ceiling of 50% of reservation on total vacancy.[1] 

• SCOPE OF ARTICLE 16

Article 16 deals with public employment which means employment or appointment to any office under Central or State Government or sub-ordinate to them. Now, matters relating to employment and appointment must include all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form parts of the terms of the conditions of such employment.

The expression ‘equal employment opportunity’ is having a wider scope. The phrase Equal Employment Opportunity (EEO) includes:

• Access to jobs
• Conditions of employment
• Relationships in the workplace
• The evaluation of performance and
• The opportunity for training and career development.[2]          
  • APPOINTMENT

Appointment to any public office must be absolutely transparent and fair and must be in accordance with the prescribed procedure. The appointment shall be made by providing an equal opportunity as inferred in Article 14 without leading to any arbitrariness.

The Supreme Court stated in case of Renu and Others v District and Sessions Judge, Tis Hazari and Another[3] that “The High Court is a constitutional and an autonomous authority subordinate to none therefore nobody can undermine the constitutional authority of the High Court. If, rules are not in consonance with the philosophy of our Constitution and the same may be modified and no appointment in contravention thereof should be made. It is necessary that there is strict compliance with appropriate Rules and the employer is bound to adhere to the norms of Articles 14 & 16 of the Constitution before making any recruitment.”

In the case of Food Corporation of India v. Bhanu Lodh[4]it was observed that any discrimination can only arise as between the persons who are similarly, if not identically treated. It is not possible for the Deputy Manager’s post to claim that he had been discriminated against because a Joint Manager had been appointed. There is nothing common between the two posts. It is perfectly valid for the employer to fill up one category of posts and decline to do so the other for various business reasons. The argument of discrimination is without basis or merit.

•  REASONABLE CLASSIFICATION

According to article 16(2), there shall be no discrimination on the basis of caste, creed, sex, origin, place of birth, etc. but a reasonable classification is always permissible to achieve the concept of equality in true sense. For instance, a group of people can be classified from others on the basis of educational qualifications, for the interest of a backward society, etc. In (4) & (4A) of Article 16, its mentioned “not adequately represented in the services under the State” which means the state can make provisions for the betterment of such people by classifying them from others for their betterment and to secure social justice. The section permits reservations by the appropriate government.  

In the case of, Rajasthan State Electricity Board Accountants Association, Jaipur v.  Rajasthan State Electricity Board[5] the matter of promotion classification on the basis of educational qualifications so as to deny eligibility for promotion to a higher post to an employee possessing lesser qualification or require longer experience for those possessing lesser qualifications has been upheld as valid by Supreme Court.

• DIFFERENT PAY SCALES

Different pay scales are not discriminatory per se. the authority has jurisdiction to lay down different pay scales for the employees on the basis of valid reasons.

In the case of, Government of West Bengal v. Tarun K Roy[6] three judges bench, noticing several other decisions opined that parity in the pay cannot be claimed when the educational qualification is different.

Also in a case, the apex court stated that it is well settled that equation of posts and determination of pay scales is the primary function of executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like pay commissions, etc. 

• PROMOTION

The power of the state to make provision regarding reservation is not limited to employment and appointment in public office but according to Article 16(4-A), the state can also regulate the promotional and seniority in the public office to ensure that every group of society is adequately representing in the public offices.  

In Union of India and others v. Hemraj Singh Chauhan and others[7] it was observed that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution the guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of Constitution.

Justifying reservations for the Scheduled Castes and Scheduled Tribes candidates in the promotion, the Court held that even their seniority acquired by the promotion of the general class candidates could not be affected by the subsequent promotion of the general class candidates.  S. Vinodkumar vs. Union of India[8] Relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible.

• RESERVATION POLICY

The reservation has its genesis from the Poona Pact of 1924. In the 1947 Interim Report on Fundamental Rights,  the reservation under Article 16 was looked upon with major aims that:

• formal equality i.e. to put SC, ST, OBCs on the same footing with the majority.
• provision for the entry of certain communities which have so far been outside the administration
• reservation, cannot be of such an extent that it would override formal equal treatment.

In the case of Indra Sawney v. Union of India[9] The Supreme Court held that the reservations were constitutionally valid provided that they did not include what it termed the ‘creamy layer’ of socially advanced persons. The reservations were confined to initial appointments and did not extend to promotions, and the total reservation must not exceed 50 percent.

The decision in Balaji case was overruled by Court in the case of State of Kerala v. N.M. Thomas[10] by holding that Article 16(4) is not an exception to article 16(1) but an independent clause. The decision was approved that Article 16(1) is a facet of the doctrine of equality enshrined in article 14 and permits reasonable classification just as article 14 does.

The backward class of people contemplated in Article 16(4) is having a wider aspect. It includes Scheduled Castes, Scheduled Tribes, and all other backward classes of citizens including the socially and educationally backward classes. There may be certain classes that do not qualify for reservations under article 15(4) but may qualify under article 16(4).

The Article also provides for carry-forward rule under (4-B) of Article 16. The rule provided that if the quota of reserved posts for a given year was not filled, the balance would be carried forward to the next.

In Devadason v. Union of India,[11] the Supreme Court had considered the scope of Article 16(4), particularly in relation to the ‘carry-forward rule’. The court struck down the rule and held it unconstitutional. Then, in the case of A.B.S.K. Sangh (Rly) v. Union of India[12], the Court reinstated the ‘carry forward rule’. The Court considered the reservation of 64.4 percent not to be excessive and permitted the reservation in excess of 50%.

The Mandal Commission case had upheld the decision in Devadason in finding that the ‘carry-forward rule’ was valid, provided it did not result in reservations exceeding the 50 percent limit.

However, Article 16(4-B) was instituted by the Constitution (Eighty-first Amendment) Act, 2000 which clearly allows the carry forward rule in excess of fifty percent ceiling.

The object of providing reservation is to give a share in state power to those who have remained out due to reason of social, economic, educational backwardness. Nehru once said, “we cannot have equality because in trying to attain equality we come up against some principles of equality”. The statement justifies the concept of reservation for a backward class.

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[1] Article-16, Constitution of India (1950)

[2] M.P. Jain, Indian Constitutional Law, 109-110(6th ed., 2009)

[3] CIVIL APPEAL NO. 979 OF 2014 

[4] A.I.R, 2005 S.C. 2775 at p. 2782

[5] A.I.R 1997 S.C 882 at p. 886

[6] (2004) 1 S.C.C 347

[7] A.I.R 2010 S.C 1682

[8] 1996 6 SCC 580

[9] A.I.R 1993 S.C 477 at p.537

[10] AIR 1976 SC 490.

[11]AIR 1964 SC 179.

[12] (1981) I SCC 246.